Filing a Personal Injury Claim for Restaurant Food Poisoning

Each year, 48 million people in the U.S. become sick from food-borne illnesses (1). Last year, 42 percent of food poisoning cases were due to food eaten in restaurants, take-out spots, cafeterias, and delicatessens. This compares to 21 percent of cases due to food eaten at home.

Restaurant food poisoning can result in symptoms ranging from mild stomach upset, to nausea, vomiting, and even death.

Common causes of restaurant food poisoning:

This occurs when a restaurant prepares several different types of food at one time in the same area. Fresh, healthy food can be tainted by contaminated food prepared alongside it, or from particles and juices left over from spoiled food.

Poorly regulated food temperature
Many foods must be constantly moved in and out of the refrigerator, which causes temperature changes in the food coming in and out. Bacteria can develop and spread quickly if food is not kept at appropriate temperatures.

Poor employee hygiene
When employees don't wash their hands after using the restroom, bacteria can spread to the food they serve. Often, the employee handling your food is the same one handling the money, which carries germs, bacteria, and other harmful agents.

Sick employees who continue to work
Food preparers and servers often continue working while sick. Some employers will ignore the illness, or even refuse to give the employee time off to rest and recover. When a contagious employee comes in contact with you or your food, it's likely you will also get sick.

The Law and Restaurant Food Poisoning

Each state has its own safety and health regulations governing restaurants and other commercial food establishments. These rules are enforced by board of health agents who make unannounced visits to see if the restaurant is in compliance. They check for general cleanliness, refrigeration levels, cross-contamination, and more.

Failure to follow health regulations can result in stiff fines for the restaurant, and even closure. The fines go into the respective city or state's coffers, usually into a general fund, and not to victims of food poisoning.

The courts place upon restaurants a legal duty of care to do everything within reason to protect their patrons from undue harm. When the restaurant fails in its legal duty, and a patron is injured, the restaurant becomes liable for the injuries and resulting damages.

Proving Your Injuries

Medical and biological testing

If you've been the victim of restaurant food poisoning, seek medical care immediately. Your doctor must diagnose you with food poisoning, and identify the type of bacteria or virus that caused your illness. The most common pathogens include:

  • Campylobacter
  • E. coli
  • Listeria
  • Norovirus
  • Salmonella
  • Shigella
  • Vibrio

To identify the pathogen, your doctor may order a PFGE test (Pulsed-Field Gel Electrophoresis), which can help trace a pathogen back to a specific restaurant.

For example, if 15 people go to the ER with food poisoning after eating at a specific restaurant, using the PFGE test on all 15 people can result in a prima facie case (taken at face value) against the restaurant. The fact that 15 people who ate at the same place, at about the same time, contracted an identical pathogen, is evidence enough to prove an injury claim with certainty.

Save the food and its packaging!

Bacteria can be identified through a series of microbiological tests (MBL) on food, food containers, food wrappings, utensils, and other objects which may have come in contact with contaminated food.

Witness testimony

Proving you were at the restaurant at or about the time you contracted food poisoning is important. Speak with any potential witnesses who dined with you. Ask them to confirm in writing that they were at the restaurant with you on the date you contracted food poisoning, and if they also got ill. Have them sign and date their statements.

Verify lost wages

If you had to miss work while treating and recovering from your illness, have your employer write (on company letterhead) the dates and times you were absent from work, and the amount of income you lost as a result.

Medical records, bills, and expense receipts

If you were hospitalized due to the severity of your symptoms, ask for copies of your admitting charts, doctors' narratives, and all other medical information related to your treatment. If you were treated by your own primary care doctor, be sure to get copies of those medical records as well.

Also make copies of all your medical bills and receipts for out-of-pocket expenses. These can include doctor visit copays, prescription and over-the-counter medication charges, costs of transportation to and from treatment, and any other costs related to your medical treatment and recovery.

The Role of Attorneys

Minor Injuries

The severity of your food poisoning will determine if you need a personal injury attorney. If your symptoms were minor, including mild diarrhea, vomiting and nausea, and only lasted a day or two, you may not need an attorney.

Contact the restaurant and tell the owner and manager about your food poisoning. Present copies of your meal receipt, medical bills, and out-of-pocket expenses. Also bring your other evidence, such as witness statements and proof of lost wages. Do not turn over copies of your medical records or they will become public.

Other patrons may have reported food poisoning on the same date. If so, it will make your claim more credible.

Tell the owner or manager you want compensation not only for your medical bills and expenses, but for your pain and suffering as well. If the restaurant won't cooperate, you can try filing your injury claim in small claims court.

Serious Injuries

If your symptoms were serious enough to require emergency room treatment, you will need an experienced personal injury attorney to handle your case. If you try to settle a serious injury claim yourself, you probably won't get the compensation you deserve.

Attorneys can file lawsuits, take depositions, issue subpoenas, and more. If your case is supported by the evidence, the restaurant will likely offer your attorney a fair settlement. If not, a jury may award even more in their verdict.

Most personal injury attorneys don't charge for initial office consultations. Make appointments with several attorneys in your area. Try to find a few with experience handling cases of restaurant food poisoning. The attorneys will review your evidence, discuss your chances of winning, and give an estimate of how much your case is worth.

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